MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE: 
	DOCKET NUMBER:     AC97-09756

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:




	Also present, without vote, were:


Mr.
Loren G. Harrell

Director

Mr.
Joseph A. Adriance

Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was returned from Vietnam for an emergency leave for marital problems and applied for a compassionate reassignment which was denied; that he was returned from Vietnam a second time for emergency leave based on his spouse’s suicidal tendencies which were caused by his not being granted a reassignment, and that at this time he refused to return to Vietnam; and that he served honorably for over 2 years of his 3 year enlistment.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Regular Army on 25 July 1967 for a period of 3 years at 19 years of age.  He successfully completed basic training at Fort Bragg, North Carolina and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT he was awarded military occupational specialty (MOS) 11B (Infantryman) and assigned to overseas duty in Vietnam for his first permanent duty assignment.

The applicant’s record documents no individual acts of valor, achievement, or service warranting special recognition, and indicates the applicant never advanced beyond the rank of private/E-2.  However, there is an extensive record of AWOL related disciplinary infractions which resulted in the applicant accepting nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions, and his being tried by special court-martial.

On 29 December 1967 while still in AIT the applicant accepted his first NJP for being AWOL from 20 to 28 December 1967.  His punishment for this offense included reduction to the grade of private/E-1 and forfeiture of $35.00 per month for 2 months.

On 21 February 1968 he again accepted an NJP for being AWOL between 
17 and 19 February 1968.  The resultant punishment included forfeiture of $15.00 per month for 2 months and 15 days of restriction and extra duty.

On 16 March 1968 he accepted his final NJP action for being AWOL from 4 to 
6 March 1968.  His punishment for this offense was forfeiture of $25.00 per month for 2 months and 25 days of restriction.

On 20 November 1968 the applicant was tried by special court-martial for two specifications of violation of Article 86 for being AWOL.  The first specification was for an AWOL period  from 19 September to 2 October 1968.  The second specification was for again being AWOL from 3 October to 10 November 1968. 
He was found guilty of the charge and both specifications and was sentenced to be confined at hard labor for 6 months; to forfeit $46.00 per month for 6 months; and to be reduced to private/E-1.

The evidence of record indicates that a court-martial charge was preferred against the applicant for violation of Article 86 with three specifications for being AWOL.  The record also contains documented evidence that on 11 December 1969 the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UD.  The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.

On 16 January 1970 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 30 January 1970 the applicant was discharged after completing 2 years and 21 days of active military service and accruing 165 days of time lost due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contentions that his marital problems warranted a compassionate reassignment and marital problems impaired his ability to serve; and that he had over 2 years of honorable service prior to his discharge.  However, in view of the applicant’s record, the Board determined these factors are not sufficiently mitigating to warrant an upgrade of the applicant’s discharge.

2.  The evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and after consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ, and attested to his understanding of the possible loss of veterans benefits based on receiving a UD.

3.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director